SC Senior Advocate Indira Jaising: 'There Is A Compulsion On The Judiciary To Hear These Issues'

[00:00:02]All right, joining me right now is Miss Indira Jaising, senior advocate Supreme Court, former AIFC. Ma'am, thank you for taking the time out and joining us this evening. I I just want to connect with you. Um my first question, Miss Jaising, is concerning the latest that has come in from the top court of the country where they haven't they've rejected a plea regarding the alleged brutalities on protesters by the Delhi police stating that they don't have time to watch videos of these brutalities and that people should stop wasting their time and also their own time.

[00:00:46]>> Yes.

[00:00:47]Uh look, I don't think any of us should for a moment believe that the judiciary doesn't watch videos.

[00:00:56]Um I know for a fact that there is a full-fledged publicity department existing within the Supreme Court of India and we all know that from time to time they issue press releases.

[00:01:07]And for some time now we have known that there are several judges who have their own press publicity uh outreach uh in many different ways.

[00:01:20]Uh this just indicates that um everything that is ever said about the Supreme Court of India is well monitored, not only by the institution but also by individual judges. And I have reason to believe there have been former judges in the past, now retired, who have personally told me that yes, we monitor everything in real time. There have been judges who've told me uh that uh even while sitting in court uh if they're sitting in court, well, especially the Chief Justice of India, they know what's going on in court 10, court 12, court 16, etc. etc. How does this happen? Communication now is is is so instantaneous. So, it is not possible for me to believe that videos are not watched. That's as far as uh watching of videos goes. As far as the question of waste of time is concerned, I would like to say two things. Number one, I think ill-thought-of uh knee-jerk reaction type of petitions ought not to be filed in the Supreme Court of India.

[00:02:27]Well-documented, well-thought-out, well-argued petitions are most welcome.

[00:02:34]And then I would like to see any court say, "We will not hear it." Uh that would be abdication of judicial functions.

[00:02:43]And that is why you have noticed that today uh there has been a petition filed in the Delhi High Court by two very um >> Ma'am, if you will allow me to interject, are you saying that this is abdication of judicial duty here?

[00:02:59]Correct me if I'm wrong.

[00:03:01]>> I am saying for any judge to say, "We will not hear a well-thought-out petition dealing with police brutality."

[00:03:13]is an abdication of functions for the simple reason that Article 32 provides direct access to the Supreme Court of India. Of course, you can also go to the High Court. Okay? It's The question is not which court you go to. The question is there is a violation of mass violation of fundamental rights. And that does require judicial notice. Okay?

[00:03:35]But I'm also saying that we as lawyers uh ought not to be filing ill-thought-out petitions which are not substantiated with proper documentation. And it is in this context that I want to point out that the Supreme Court Bar Association and the Delhi High Court Bar Association have filed well-drafted, well-thought-out good petitions in the Delhi High Court and therefore the Delhi High Court has been compelled to hear that case. I I use a strong word, compulsion. There is a compulsion on the judiciary to hear these issues. Now, you see, Preity, there's one thing I also would like to say to you. This is more about the protests.

[00:04:21]You know there are laws in this country which tell us how to deal with so-called law and order situations, with so-called riots. Police are trained in {quote} and {unquote} riot control. And one of the primary issues of law is what is the nature of the force that you use uh in order to quell a riot, okay? I'm not talking about excess force. I'm just talking about force itself. And there are clear police manuals which say you cannot hit anyone above the waist. Now, what is the reason for this? What I have seen from the videos that have been circulating, and I make bold to say that it is my duty to watch every video that is circulating, not only to watch it but to preserve it.

[00:05:09]Uh what I have seen is people being hit hit on the head. Now, I would like to tell you even a nodding acquaintance with a bit of medical jurisprudence and forensic science will tell you that a hit on the head is incapacitating, sometimes for life, okay? It is a center of cognition. It is the center of what makes you speak. It is the center of make what makes you see. It is it is what your life is all about. And this is the logic behind the um direction to the police of law that you will not hit a person above the waist because you're going to destroy their vital organs and for life, okay?

[00:05:54]So, this is a question that the Supreme Court should have seized upon and should have said this we will not allow.

[00:06:03]This kind of mass violation of fundamental rights.

[00:06:06]>> Right.

[00:06:08]But Ms. Jaising, you know Ms. Jaising, it's not an attempt for headline hunting. I'm not doing that, but I'll take you back where you say well-drafted petitions, especially where it comes down to protest, is the judicial compulsion of the courts to entertain. You have been the ASG of this country. You are a reputed Supreme Court senior advocate. I would like to ask you in this particular case because our timelines are flooded with these videos. Would you think this would have warranted an urgent hearing?

[00:06:43]You know, not only would have have wanted an urgent and extraordinary hearing, I would say 24 hours of the day, night or day is not even important in a case of this kind. Yes, my answer is yes. But even more importantly, there is the suo motu jurisdiction of the Supreme Court of India, okay? And we have seen repeatedly the Supreme Court taking suo motu cognizance of issues which concern the judiciary. It's time for the Supreme Court to take suo motu cognizance of issues which concern you and me. Not just you and me, but people of the age group of 16, 17, 18, 19, 20.

[00:07:21]These are the people that are being attacked today in the country. And yes, I do think the Supreme Court is under a duty to take suo motu cognizance of what's going on. That's my view. That's my opinion.

[00:07:34]>> I want you Ms. Jaising, I want you to maybe elucidate for us because of course this was a petition that was turned down by the top court, uh leave alone taking suo motu cognizance. Has there been past precedent in cases such as this, a protest march which there has been uh you know, alleged brutalities of the crackdown by the uh security forces? Is there past precedent of the court stepping in taking suo motu cognizance?

[00:08:00]>> The question is not that there is precedent for taking suo motu cognizance of protest. The question is is there past precedents for taking suo motu cognizance even though the petitions are not well drafted and there is The courts have taken cognizance of letters, okay? Which don't necessarily contain all the data that should be there on record. They have then gone on to appoint their own commissions, their own committees of social scientists to gather the evidence and place it before the Supreme Court of India, okay? This is the essence of what we call public interest litigation. So, what has happened to that jurisprudence of the Supreme Court? I am unable to understand.

[00:08:47]And and you can't have a suo motu jurisdiction which is so totally arbitrary. You take cognizance when it concerns, let's say, something like an attack on the judiciary and a perceived attack on the judiciary and not take cognizance of an attack on people of the country.

[00:09:10]>> Ma'am, it's a big thing that with what you've just said uh that it's the jurisprudence of the top court to take cognizance of a protest like this. Uh it is rather big. I want to uh you know, I I want to ask you uh like you pointed out and you you know, said a lot with saying uh with you know, how you then elucidated it. I want to ask you one question. You studied the Constitution very closely. There is a raging debate right now in the country on where does the right of protest end as per validated in the constitution and threats to national security begin?

[00:09:46]Because the march was illegal. Many people are saying, "Yes, you have a right to protest, but the march to parliament was illegal. The cops had to crack down."

[00:09:55]Yeah.

[00:09:57]>> See, illegal in what sense? Illegal in the sense that it did not have {quote} and {unquote} permission, right?

[00:10:08]Unlawful assembly. I presume that's what they mean by illegality. There is a difference between illegality and unconstitutionality. Let's be very, very clear. I would go to the extent of saying sometimes you have a duty to protest. Forget a right to protest.

[00:10:23]That's at one level. We all have a right to protest.

[00:10:26]But at another level, we have a right We have a duty to protest when we see our law enforcement agencies violating the law. In fact, if I were to go and join the protest, it would be at the point of time when the law enforcement agencies break the law, okay?

[00:10:47]It is then your duty.

[00:10:50]Self-defense is your duty. It is your duty to stop law enforcement agencies from breaking the law. And this is what they have done. So, apart from the question of legality, we need to also discuss the question of morality, okay?

[00:11:08]We can't leave this debate at the level of, "Oh, it's illegal." Okay, if it's illegal if I have violated uh section 144 order. Now, of course, that section will change. But if I have violated that order, what can you do? Okay, you can pick me up, you can detain me, you can do what you want to do, and then release me once the threat to uh, your perceived threat is over. Can you then pick up a a lathi and break it on my head? No, you can't. So, you know, just using expressions like, "Oh, don't use excessive force." That's not good enough. It is the Supreme Court must understand why what is the logic behind saying don't hit above the above the waist. Okay?

[00:11:56]It's my vital organs that we're talking about it.

[00:11:59]Cognition. And this, I think >> Ma'am, I'm going to ask you one quick question before we let you go. Yes.

[00:12:06]I'm going to ask you, uh, Ms. Jaising, one quick question before we let you go.

[00:12:10]The bar has always been very robust in the past for championing various forms of protest. Do you think the bar is also failing in its duty?

[00:12:20]>> I have consistently said that the legal profession has not stood up to uh, the attacks on the Constitution that we have seen, uh, in the past few years.

[00:12:33]But, I have to say that I'm very pleased that the Supreme Court Bar Association and the Delhi High Court Bar Association has taken up the issue collectively and gone to the High Court. We are awaiting the results. We I, for one, will vote. You know, the elections are coming. The Supreme Court Bar Association elections are coming. And my vote will go to the candidate who says, "I stand by the Constitution of India. I stand with students."

[00:13:06]>> All right, ma'am. Thank you for taking the time out and joining us this evening. I highly appreciate it. Thank you there.